The comments in this paper are on the Model Criminal Code, Chapter 5, Sexual Offences Against The Person, Discussion Paper, prepared by the Officers Committee of the Standing Committee of Attorneys-General.
The bias against the common law methodology
The submissions are critical of the philosophy and methodology
of the common law and seeks to provide a new basis. There are
weaknesses in the common law philosophy and methodology. Any
legal system will have weaknesses. No legal principles can be
applied to every conceivable situation. The suggested reforms
are counter productive. The reforms will lead to many more
problems than which exist under a system based on the common
law methodology and philosophy. Necessary amendments to suit
modern conditions based on the existing system is a far better
way forward. This system, despite imperfections has worked
better than any system which the world has known. The
Committee proposals involve throwing the baby out with the
bath water and replacement with suggestions which border on or
sometimes are beyond the idiotic.
The accumulated experience of the past is discarded in many areas. A new act has been drafted. The draft is likely to create great uncertainty. Law reform (so called) consequent to the problems of existing law, provides new provisions. These provisions invariably create more problems than the law which was replaced. There is little doubt that the provisions of this Code are so vague that it will lead to endless litigation. An example is provided from the report.
Evidence of self-induced intoxication cannot be considered in determining whether a fault element of basic intent existed.
A fault element of basic intent is a fault element of
intention for a physical element that consists only of conduct.
Note: A fault element of intention with respect to a circumstance is not a fault element of basic element. p.202 of Chapter 5.
This is plain unmitigated gobbledygook; it is a recipe for uncertainty.
The existing law with all its faults has an accumulated body of case law. A new beginning is to be made with sections which generate great uncertainty.
The comments of the Discussion Paper on rape are laughable, if the subject were not so important.
The modern emphasis is not upon the protection of virginity, the risk of pregnancy, or the defilement of another man's wife or daughter, but rather upon providing the appropriate level of protection for the sexual autonomy of women and men. On that basis, there is no justification for drawing the distinctions which were involved in the common law of rape. (p. 19 of Chapter 5.)
What is "providing the appropriate level of protection for the sexual autonomy of women and men". This is gobbledygook. It is subversive nonsense. It is a crime that tax payer's money is spent on preparation of such proposals.
The basis of the law must be protection against violence, protection of a woman from being forced into a very intimate and private act, protection against forced sex, protection against defilement in a most intimate area, protection of the most important of all relationships (if one exists in a particular situation of rape), protection of virginity (if the raped person is a virgin) and the protection against unwanted pregnancy.
The bias against morality
The underlying philosophy of the Discussion Paper is reflected in the following comment:
Laws should reflect social need, not moral repugnance.
Unless there are pressing reasons to do so, it is futile to
try and stop activities which are bound to continue and upon
which the community is divided... Where the moral issue is one
upon which there is room for seriously divergent opinions, the
legislature should therefore interfere to the extent necessary
to protect the community, or any individuals with special
needs. Generally those who take part voluntarily in activities
some consider morally repugnant should not be the concern
of the legislature unless they are so young and defenceless
that their involvement is not truly voluntary.( p. 9 of Chapter
Page 9 of chapter 5: The first sentence says "laws should reflect social needs not moral repugnance". This shows a clear bias of the committee. The committee seem to think of morality as leading to repugnance. This is clearly the committee's biased perspective. The basis of religious morality is not repugnance, it is right and justice. [Sanity]
The committee is living in cuckoo land if it believes that
there can be law without morality. What the committee apparently is against is not morality (which is about standards of right and wrong) but religious morality. The
committee sets up its own morality in the report. Morality is about what is right and wrong. The members of the committee are rejecting religious morality. They are putting up their own version of morality. They do this in a devious way, without recognising that they are replacing one set of morality with another. A pervading influence in the Committee's work is the repugnance which is felt towards religious morality. This makes the work of the Committee repugnant to common sense, wisdom and human progress.
The following is an extract from L J M Cooray,The Case for Morality (shortly to be published).
All government and law are underpinned by morality or selfish and evil designs. Historically Australian common law inherited from Britain was based on biblical morality. It is different today.
Morality includes values such as honesty, the pursuit of
truth, keeping one's word and promises, responsibility, duty,
integrity in interpersonal relations, concern for immediate
neighbours, respect for property, loyalty, marriage and family
integrity and responsibilities, chastity outside marriage and
the work ethic.
The emphasis is upon the duty and responsibility of the
individual. No society can function efficiently or humanely
and no civilisation can endure without these values. The
failure to assume responsibility for one's actions and the
tendency to look to the government for everything are among
the consequences of the break down of traditional morality.
It bears emphasis that Christian morality (the moral code of
the Bible) is accepted by many who are not Christians. The
Christian moral code is very similar to the Jewish, Buddhist,
Hindu, Muslim morality and is also accepted by those with no
religion. There is a code of morality which is common to many
religions and which is accepted by some humanists.
Keep morality out of law and politics is a deceptive
slogan. Many who use it want to get religious morality out of
law and politics and substitute their own version of morality,
political or philosophical agendas or evil designs.
Can people claim that law should be based on morality in this
time and age. There are persuasive arguments to support such a
First, the values which underlie the inherited common law are
derived from Christian morality. The principles of morality
are common to all religions (as is apparent from an
examination of the above description of morality). These
values enjoy widespread popular support. They are attacked by
a tiny minority in media, education and politics.
Second, if law is not based on a moral value, or the whims
and fancies of a dictator, on what can it be based?
Liberals, socialists and Marxists and all who campaign for
rights for women, abortion on demand, homosexuals, trade
unionists, business people, consumers, Aborigines, minorities
or any sector of society all have their own version of what is
right and wrong. This is in reality a statement of morality.
Why is it unacceptable for religious people to claim that
their morality should be the basis of law, but quite
permissible for adherents to political ideologies or for
pro-abortion, peace, feminist, environmentalist, consumer,
homosexual and other groups to put forward their views of
right and wrong (morality) as the basis of law?
Ask the question of those who argue that morality has no
place in politics, and no one will provide a credible answer. [see the sanity test]
Silence, changing the subject, saying something totally
unrelated or slogans (old fashioned, reactionary) are the
No law is ever made in a moral vacuum. If law is not based on
morality, on what can it be based? There is no justification
for any law which is not based on a moral or ethical value.
Those are those who argue that morality must be exorcised from
law and society. But at the same time they are arguing for new
laws based on their preferred particular moral base. They are
guilty of double standards. The opponents of traditional
morality are committed to another morality or other moralities
based on relativism, secular humanism, liberalism, socialism,
permissiveness, situational ethics, an anti-moralism, anti-Christianityism, rights for minorities, rights for "you name it", or material equality and distributive justice enforced through law.
Thirdly, 70 per cent of the people of Australia regard
themselves as Christians according to the census statistics.
There are people of other religions who also recognise the
importance of morality. If Australia is a representative
democracy this requires that the voice of such persons be
heeded. They have a right to a decisive voice in public
It is falsely argued that moral values are outdated. This is
false. Christian values embody eternal truths which have
attempted to follow over the years.
Moral values have been followed by other civilisations. Roman
civilisation at the height of its fame and prosperity
recognised the importance of basic moral values. The decline
and fall of the Roman Empire is associated by historians with
the spread of immorality and the over-reaching power of
The Australian, March 3, 1988 quotes a values study in
which the majority trend calls for the return to traditional
family values and structures. The journalist's comments were
"It seems they are going back to a rosy time that people
seem to think existed. What they want is, I suppose, a sort of
This is an oversimplification and misrepresentation. The
answer is not that biblical principles will lead to Utopia ["but their absence leads to hell on earth"]; but that they offer a firmer basis for dealing with the problems of life than the values which have underpinned modern age law and social reform.
This is not to deny that changes are necessary. The problem
with modern social and law reform is that it has not proceeded on an understanding of the real value and worth of moral values. Much of modern reform has been counter productive for a variety of reasons. The most important reason is the turning away from moral values. ["see the retreat from reason"]
The common law developed on the basis of morality has been
attacked and fundamentally changed, rather than creatively
adapted and developed to meet the emerging and genuine
problems of modern life. There are eternal values which must
form the core of any civilisation". [see Civilisation defined"]